SUPERIOR COURT OF JUSTICE (DIVISIONAL COURT)
CITATION: Sioux Lookout (Municipality) v. Clace, 2023 ONSC 3329
COURT FILE NO.: DC-23-004-JR
DATE: 2023-06-01
B E T W E E N:
The Corporation of the Municipality of Sioux Lookout Applicant
- and -
Reginald Clace Respondent
COUNSEL: J. Lester, for the Applicant Reginald Clace, Representing himself V. Crystal, for the Human Rights Tribunal of Ontario
HEARD: June 1, 2023, at Thunder Bay, Ontario via Zoom
BEFORE: Mr. Justice W. D. Newton
Reasons on Application for a Stay
Overview
[1] The Corporation of the Municipality of Sioux Lookout (“Municipality”) seeks an order staying a hearing set for June 8, 2023 before The Human Rights Tribunal of Ontario (“HRTO”).
[2] For the reasons that follow, the request for a stay is denied.
Background
[3] In August 2016 Mr. Clace filed an application with the HRTO alleging that the Municipality discriminated against him because a by-law officer employed by the Municipality, Mr. Smetana, made derogatory comments to him.
[4] In March 2017 the Municipality filed a response denying the allegations of discrimination.
[5] A hearing was set for November 8, 2018 but cancelled by the HRTO because of a lack of resources.
[6] The hearing was rescheduled for April 24 2019 and cancelled again but proceeded as a prehearing conference. Following the prehearing conference the parties were advised that a new hearing would be set sometime in the next four to six months.
[7] Nearly two years later, without ever receiving another Notice of hearing from the HRTO, the Municipality’s only witness, Mr. Smetana, died.
[8] On May 27, 2021, the Municipality filed a Request for an Order during Proceedings seeking to stay the proceedings based on administrative delay and actual prejudice suffered by the Municipality as a result of Mr. Smetana’s death.
[9] The Municipality did not receive any response from the HRTO and wrote to the HRTO on March 4, 2002 requesting a status update.
[10] Having received no response, the Municipality wrote to the HRTO to determine what steps were being taken to schedule the stay motion.
[11] In January 2023, the HRTO scheduled a case conference for March 27, 2023.
[12] The Municipality asserts that the Vice Chair stated that she was not aware of the motion to stay and that “she was dismissing the [motion] in any event, and that she would be proceeding to schedule this matter for a merits hearing”.[^1]
[13] Counsel for the HRTO points out that this assertion is contrary to the facts as set out in the Case Assessment Direction authored by the Vice Chair on April 11, 2023 which states as follows:
The Respondent's Request for Dismissal Due to Administrative Delay
[12] At the CMCC, the counsel for the respondent asked the Tribunal to dismiss the Application in its entirety for administrative delay. Counsel for the respondent indicated that they had filed a Form 10 "Request for Order During Proceedings" ("RFOP") on May 27, 2021. Unfortunately, the Form 10 was not in the Tribunal's electronic file and I had not reviewed it prior to the CMCC. I informed the parties that I intended to use the time during the one-hour CMCC to move the matter towards the merits hearing and that I could not address the RFOP as I had not seen it. I asked counsel for the respondent to forward a copy of the RFOP to the Registrar so that I could review it after the CMCC and ensure it was uploaded to the Tribunal's electronic files.
[13] Prior to the CMCC, I was aware that the Tribunal's electronic files contains the following communication from counsel for the respondent dated March 18, 2022: The Respondent filed and served a Request for Order During Proceeding on May 27, 2021. To date, the respondent has received no communication from the Tribunal regarding its Request, and specifically it had not been scheduled for a hearing. Can you please advise of the status of this request?
[14] Prior to the CMCC, I was aware that the Tribunal's electronic files also contain an email from counsel for the respondent dated June 15, 2022 in which he requested the Tribunal "explain (1) what steps are being taken to schedule the proceeding ... and, (2) what is the reason for the delay?"
[15] I understood from these communications from the counsel to the respondent that the respondent wanted to move the Application towards a merits hearing. I informed the parties that I wanted to reschedule the merits hearing since the parties were both present and would do so on an expedited basis.
[16] I apologized for the Tribunal's delay and informed the parties that the purpose of the CMCC was to move the Application towards a hearing as soon as possible.
[17] Counsel for the respondent asked me to explain the delay. I informed the parties that I am the adjudicator assigned by the Associate Chair to the Application and I did not have knowledge about the reason for the delay. I was present to conduct the CMCC.
[18] I note that after the CMCC, on April 5, 2023, counsel for the respondent forwarded a string of emails to the Tribunal. No RFOP was attached to the email and, therefore, I have not had an opportunity to review it.
[14] On April 25, 2023, counsel for the Municipality wrote to the HRTO advising that the Municipality intended to bring an application for judicial review in the Divisional Court seeking a permanent stay and asked that the June 8, 2023 hearing date be vacated pending the outcome of the judicial review.
[15] The notice of application for judicial review was issued on April 28, 2023. The application seeks an order granting a permanent stay on the basis of institutional/administrative delay and, in the alternative, an order in mandamus directing the HRTO to hear and determine the Municipality’s motion to stay.
[16] Subsequently, on May 3, 2023, the Vice Chair issued a further Case Assessment Direction and denied the request to vacate the hearing date. The Vice Chair reviewed the background of the request to dismiss for administrative delay as follows;
[15] I have now had an opportunity to review the respondent's Form 10 and direct the respondent to file no later than May 11, 2023 any further legal submissions and case law that the respondent would like the Tribunal to consider with respect to their request that the Tribunal dismiss the Application for administrative delay. In particular, the Tribunal asks the respondent to address whether the Supreme Court of Canada's decision in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, should be considered by the Tribunal and provide any legal submissions on how the Tribunal should apply that case and/or any more recent case law. The Tribunal requests that the respondent's legal submissions, if any, are no longer than 10 pages and that copies of all case law referred to in the legal submissions be provided to the Tribunal. The Tribunal directs the respondent to inform the Tribunal if they do not intend to file further legal submissions. The Tribunal further directs the respondent to deliver a copy of the submissions and case law to the applicant and file a Form 23 with the Tribunal.
[16] No later than May 25, 2023, the applicant may file a Form 11 and respond to the respondent's Form 10 and any additional submissions provided in response to this CAD. The Tribunal requests that the applicant's legal submissions, if any, are no longer than 10 pages and that copies of all case law referred to in the legal submissions be provided to the Tribunal. The Tribunal directs the applicant to inform the Tribunal if they do not intend to file any responding legal submissions. The Tribunal further directs the applicant to deliver a copy of the submissions and case law to the respondent and file a Form 23 with the Tribunal.
[17] The Tribunal intends to address the issues in the Form 10 at the one-day merits hearing scheduled to take place on June 8, 2023.
Position of the Parties
[17] The test for a stay pending judicial review is not disputed:
(i) Is there a serious issue to be tried on the merits; (ii) Would the applicant suffer irreparable harm if the stay is not granted; and (iii) Does the balance of convenience favour granting the stay?
[18] The Municipality argues that the serious issue is that the Municipality is being denied procedural fairness due to the HRTO’s unreasonable delay and its refusal to formally hear the motion to stay. It argues that it will suffer irreparable harm if the hearing proceeds.
[19] HRTO argues that there is no harm as the Vice Chair has indicated that the motion to stay will be dealt with on June 8, 2023 as set out in the Case Assessment Direction dated May 3, 2023. Indeed, as the HRTO notes, this is the alternate relief sought on the application for judicial review. Further, HRTO argues that it is preferable that administrative proceedings run their full course before the tribunal and that proceedings should not be fragmented.[^2]
[20] Mr. Clace simply wishes that the hearing proceed as scheduled.
Analysis and Disposition
[21] The Application for judicial review to the Divisional Court is premature.
[22] Although there may have been some miscommunication between the parties, I am satisfied that the HRTO will deal with the motion for a stay at the hearing scheduled for June 8, 2023 as set out in the latest Case Assessment Direction. Accordingly, the application for a stay pending judicial review is dismissed.
[23] As stated by the Court of Appeal, it is preferable to allow matters to run their “full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion”[^3].
[24] Once a decision from the HRTO is released then the parties may pursue their appeal rights. Whether that includes a judicial review of the HRTO’s decision on the stay will be up to the parties.
[25] I did not receive or ask for cost submissions. Any party who seeks costs may deliver cost submissions limited to three pages plus costs outline within 10 days with any reply due 10 days thereafter subject to the same limitations. I can indicate to the parties that my present inclination is that neither the Municipality nor HRTO would be entitled to costs in the circumstances.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: June 1, 2023
CITATION: Sioux Lookout (Municipality) v. Clace, 2023 ONSC 3329
COURT FILE NO.: DC-23-004-JR
DATE: 2023-06-01
ONTARIO SUPERIOR COURT OF JUSTICE (DIVISIONAL COURT)
B E T W E E N:
The Corporation of the Municipality of Sioux Lookout Applicant
- and -
Reginald Clace Respondent
REASONS ON APPLICATION FOR A STAY
Newton J.
Released: June 1, 2023
[^1]: Affidavit of Stephanie Counts, sworn May 15, 2023 at para. 20.
[^2]: See for example Holland L.P v. Labourers’ International Meaning of North America, 2023 ONSC 870 (Div. Court), Ontario College of Art v. Ontario (Human Rights Commission), 11 O.R. (3d) 798, and Volochay v. College of Massage Therapists of Ontario, 2013 ONCA 541.
[^3]: Ontario College of Art v. Ontario (Human Rights Commission), 11 O.R. (3d) 798.